Telecommunications Legislation Amendment (Enhancing Consumer Safeguards and Other Measures) Bill 2023 - Commentary on Ministerial Responses [2024] AUSStaCSBSD 46 (28 February 2024)

• Telecommunications Legislation Amendment (Enhancing Consumer Safeguards and Other Measures) Bill 2023203
• Modification of the operation of primary legislation by delegated legislation (akin to Henry VIII clause)204
• Minister for Communications response205
• Committee comment

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Telecommunications Legislation Amendment (Enhancing Consumer Safeguards and Other Measures) Bill 2023^[203]

Purpose	The Telecommunications Legislation Amendment (Enhancing Consumer Safeguards and Other Measures) Bill 2023 (the bill) seeks to amend the Telecommunications Act 1997, the Telecommunications (Consumer Protection and Service Standards) Act 1999 and the Competition and Consumer Act 2010 to refine the operation of the statutory infrastructure provider (SIP) regime. It also seeks to make technical and other amendments to legislation to improve the operation of telecommunications regulation outside the SIP regime, including changes that would enhance the enforcement and reporting powers of the Australian Communications and Media Authority and the Australian Competition and Consumer Commission.
Portfolio	Infrastructure, Transport, Regional Development, Communications and the Arts
Introduced	House of Representatives on 7 December 2023
Bill status	Before the House of Representatives

Modification of the operation of primary legislation by delegated legislation (akin to Henry VIII clause)^[204]

2.89 The bill proposes amendments to the Telecommunications Act 1997 (the Tel Act), which would enable delegated legislation to modify the operation of primary legislation.

2.90 Proposed subsection 360HB(2) requires that where a facility is installed in, or in proximity to, the project area of a real estate development or building redevelopment project that is not part of an existing nominated service area, a carrier service provider (CSP) must declare that area as a provisional nominated service area where the specified conditions are met. However, proposed subsections 360HB(4) and 360HB(5) would also respectively enable the minister, by legislative instrument, to exempt a project from subsection 360HB(2) and to specify circumstances where the obligations do not apply.

2.91 Currently, section 360J of the Tel Act provides that 33 ‘development areas’ described in three carrier licence condition declarations, are nominated service areas under the Act. However, proposed subsections 360J(3) and 360J(4) would enable the minister, by legislative instrument, to make a declaration which would have the effect of revoking or varying the ‘nominated service area’.

2.92 Proposed subsection 360K(1A) provides that if an area is a provisional nominated service area because of a declaration made by a CSP under section 360HB, the carriage provider is the statutory infrastructure provider (SIP) for the service area. However, proposed subsection 360K(1B) would enable the minister, by legislative instrument, to declare that subsection 360K(1A) does not apply to a specified nominated service area and that another specified CSP is the SIP for the nominated area.

2.93 Proposed section 360KB establishes how the SIP for an anticipated service area is determined. It provides that a carrier who gives a notice under subsections360HA(1) or 360HC(1) of the Act, in relation to an anticipated service area, will be the SIP for the area. However, proposed subsections 360KB(2) and 360KB(4) would enable the minister, by legislative instrument, to declare that these provisions do not apply and that a specified carrier is the SIP for the area.

2.94 In Scrutiny Digest 1 of 2024 the committee requested the minister’s advice as to why it is necessary and appropriate to allow delegated legislation made under proposed subsections 360HB(4), 360HB(5), 360J(3), 360J(4), 360KB(2) and 360KB(4) to modify the operation of the Telecommunications Act 1997.

Minister for Communications response^[205]

2.95 The Minister for Communications (the minister) provided further information as to the operation of proposed sections 360HB, 360J and 360KB in support of the necessity of providing for instruments made under proposed subsections 360HB(4), 360HB(5), 360J(3), 360J(4), 360KB(2) and 360KB(4) to modify the operation of the Tel Act:

• section 360HB should be modified to allow for circumstances in which the Act requires a CSP to declare a provisional nominated service area but changes in market circumstances, which are difficult to predict, mean it is inappropriate for a development to be subject to SIP obligations;

• section 360J should be modified to allow for when nominated service areas no longer match the areas deemed by the Act where the carrier that owns the network infrastructure is not specified as the SIP for that area; and

• section 360KB should be modified to allow variations to anticipated service areas where the relevant SIP has exited the market or on-sold infrastructure.

2.96 Overall, the minister noted that these modification powers are necessary to ensure that the regime functions appropriately in light of the need to take into account changing market conditions. These changes would make it difficult for SIPs to meet their obligations and requirements and could lead to a lack of industry certainty and poor consumer outcomes.

Committee comment

2.97 The committee thanks the minister for these justifications as to the necessity for allowing legislative instruments to modify the operation of primary law.

2.98 While noting this further advice, the committee reiterates its view that it does not generally accept a desire for flexibility alone to be a sufficient justification for allowing delegated legislation to modify the operation of primary legislation. Changing market conditions explain why the minister may wish to quickly modify the operation of these provisions but does not explain why Parliament should accept its enactments to be modified without oversight.

2.99 The committee also considers that those same changing market conditions for which the minister may wish to vary the operation of provision could also lead to such legislative instruments becoming redundant due to another change. As such, the committee considers that it would be more appropriate if modification instruments were time limited to ensure that they are clearly addressing transient market conditions. In the alternative, if the provisions as modified are determined as being necessary for long-term effect, the committee considers that such matters should be dealt with via amendment to the primary legislation.

2.100 In light of the above, the committee requests the minister’s further advice as to:

• whether the explanatory memorandum to the bill can be amended to include the justifications for the appropriateness of proposed subsections 360HB(4), 360HB(5), 360J(3), 360J(4), 360KB(2) and 360KB(4); and

• whether the bill can be amended to ensure that legislative instruments made under proposed subsections 360HB(4), 360HB(5), 360J(3), 360J(4), 360K(1B), 360KB(2) and 360KB(4) are time limited to five years duration.

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^[203] This entry can be cited as: Senate Standing Committee for the Scrutiny of Bills, Telecommunications Legislation Amendment (Enhancing Consumer Safeguards and Other Measures) Bill 2023, Scrutiny Digest 3 of 2024; [2024] AUSStaCSBSD 46.

^[204] Schedule 1, Part 1, item 74, proposed subsections 360HB(4) and 360HB(5); Schedule 1, Part 1, item 76, proposed subsections 360J(3) and 360J(4); Schedule 1, Part 1, item 78, proposed subsection 360K(1B); Schedule 1, Part 1, item 82, proposed subsections 360KB(2) and 360KB(4). The committee draws senators’ attention to these provisions pursuant to Senate standing order 24(1)(a)(iv).

^[205] The minister responded to the committee’s comments in a letter, dated 8 February 2024. A copy of the letter is available on the committee’s webpage (see correspondence relating to Scrutiny Digest 3 of 2024).